Mishra, J. - (1.) A learned single Judge of this Court has declined to grant leave to the plaintiffs-respondents to institute the suit underSec.92 of the Code of Civil Procedure. One of the respondents in the application, named as the defendant in the plaint, has preferred the appeal.
(2.) CLAIMING inter alia that the first applicant-first respondent was a life member in the defendant trust and that he was closely associated with the management of the schools belonging to the trust as an executive member of the Parents-Teachers'Association and the second applicant-second respondent too was in the Executive Committee of the Parents-Teachers'Association of the School, the applicants filed the application praying for leave to sue. According to them, this trust was started by the State Bank of India Officers'Association for the advancement of the education for the benefit of the public. When the trust was started, the subscribers to the Trust became the members of the trust by virtue of the bye-laws. The officers of the Association also became the ex-officio, office-bearers of the trust. They were, however, serving officers in the State Bank of India. It so happened in Writ Petition No.9933 of 1985, the Supreme Court held that officers of the Bank should not actively work for a trust involving collection of funds from the public, and observed as follows:'We are of the firm opinion that no employee of the nationalised bank or any other public sector corporation should engage himself in collecting donation for any trust or other organisation from persons with whom because into contact in the course of his employment. It is not desirable. It is likely to lead to unhealthy practices and harmful results, intended or unintended. It the world of commerce, quid pro quo and not charity is the rule. Those in a position of advantage by reason of their office have to be very wary. Otherwise they may unsuspectingly walk into traps.'. It is further stated that the Management of the State Bank of India has consequently issued a directive to the Association Officers to desist from associating themselves with the trust or holding office in the trust and it also directed that no employee shall promote or constitute or associate himself with the trust which directly or indirectly contains the Bank's name or provides for collection of funds from the public including the Bank's clients. Alleging that the directive has in such a situation paralysed the functioning of the defendant's trust and it became necessary to move the court for framing a scheme to appoint new trustees in the place of the existing trustees, the applicants filed the application seeking leave to institute the suit. It appears that besides the application for leave to institute the suit, another application was filed praying for appointment of a receiver to administer the alleged trust pending disposal of the application for leave. A learned single Judge of this Court passed an order stating that by consent of both parties, a retired Judge of this Court was appointed receiver to administer the State Bank of India Officers'Association Educational Trust pending disposal of the application for leave. Several other applications were filed in relation to the administration of the trust. But no specific orders were passed in these applications, and by a common order, P.K.Sethuraman, J., disposed of the main application for grant of leave to sue under Sec.92 of the Code of Civil Procedure, holding inter alia that leave to sue to file the suit under Sec.92 of the Code of Civil Procedure cannot be granted in this case. The learned single Judge has noted the facts as follows:"In the plaint also after mentioning other details about the formation of the trust and also the manner how the funds were collected, how the schools were started in different places, how they had been managing, the circular issued by the management dated 18.2.1986 regarding the disciplinary action to be taken for collection of funds by the Officers'Association and also referring to the bye-laws of the trust and issue of notice by the Management of the State Bank of India to the office-bearers of the trust it has-been prayed for framing a scheme for the management of the trust and as earlier shown the amendment also has been suggested in paragraph 4 to the various clauses of the bye-laws in the cause of action paragraph it has been mentioned about the statement of the management of State Bank of India objecting to the use of the name and directing deletion of the name and also directing the office-bearers of the trust to desist themselves from the trust. Therefore, it is clear that while suit is sought to be filed because of the objection taken by the Management of the State Bank of India for naming school as State Bank of India Officers'Association Educational Trust and also for the Officers Associating with the Trust and collecting funds and donations from the Bank.22.. It may be pointed out that the trust itself was established by the State Bank of India Officers Association for the various objects enumerated in the Memorandum of Association and the Officers who subscribed to the Memorandum of Association became founder members of the Trust and they are officebearers and members of the Secretariat of the State Bank of India Officers'Association, Madras Circle. As per bye-law they shall remain members so long as they held respective offices in the Association. In the event of cessation of membership the respective successors to the office shall ipso facto become members of the Society. The president, Secretary, Associate Secretary, Treasurer among themselves shall constitute themselves into a management committee and as to the officers, the President of the State Bank of India Officers'Association, Madras Circle, shall be the President of the Trust. The Treasurer of the Association shall be the Treasurer of the Trust. The General Secretary/Deputy Secretary and/or vice President of the Association as may be determined by the Committee shall be the Secretary and Associate Secretary of the Trust (Bye-law XIX (a). Therefore, it is clear that the President, Treasurer, General Secretary and Vice President became officers of the trust also. The other office-bearers have not been made as parties either in the suit or in the application.". The question before the learned single Judge, was whether on the aforementioned facts, a suit under Sec.92 of the Code of Civil Procedure could be filed and leave should be granted. He has, however, stated at one place."It will be worthwhile to mention that the two applicants are not in any way concerned with the State Bank of India Officers'Association. While that is so, it is not known as to how they had come to know the directive issued by the Management of the State Bank of India to the Officers'Association as well as members of the Trust. It may also be pertinent to point out that the application and the plaint are dated 10.4.1986 and they had been filed into Court on 11.4.1986. According to the affidavit filed by Mr.M.Balakrishnan, the applicant in A.Nos.2979, 2981 and 2982 of 1986, it has been stated that he has been declared elected General Secretary of the State Bank Officers Association on 6.4.1986 and the only respondent/defendant shown in the application and in the plaint State Bank of India Officers'Association Educational Trust by its Secretary Mr.E.A.G.Moses was not the Secretary on the date of the institution of the suit, as according to the affidavit filed by Mr.Balakrishnan, Mr.Moses contested for the office of the President of the Association and he was defeated in the election and further according to the affidavit, the said Moses with ulterior motive and object of somehow continued to be in charge of the institution, has colluded with the plaintiffs and he had engineered the suit and the application filed and also without any authority whatsoever consented to the appointment of a Receiver even before permission to sue was granted by this Court. In this connection it was also submitted on behalf of the said applicant that Moses had even resigned from the primary membership of the State Bank Officers'Association and as such he has no locus standi whatsoever to, be the respondent/defendant in the proceedings. It was also submitted that even in the year 1979 the formation of the trust and the proposed activities of the trust had been informed to the Chairman, State Bank of India and he had been sent the Memorandum of Association of Trust along with the Special brochure brought out in that regard.23. It was also submitted that on 6.6.1979 the school at Madras was inaugurated by the Chairman of the State Bank of India in the presence of dignitaries in the City of Madras. It was also further submitted that there had been a collection of more than Rs.8,00,000 and a souvenir had also been released and the members of the State Bank of India in Tamil Nadu, Karnataka and Pondicherry had made collections and there had been some benefit musical programme also through which funds were raised. It was further submitted that even in the year 1980 there was issue of a circular letter dated 24.10.1980 regarding collection of funds by the Officers Association and it was pointed out that such activity was in contravention of conditions of service as laid down in the Rule for the Supervising Staff Service. It was also submitted that under Rule42(3) of the State Bank of India Supervising Staff Service Rules, it has stated that 'no employee shall, except with the previous sanction of the appropriate authority ask for or accept contributions or otherwise associate himself with the raising of any funds or other collection in cash or in kind.'Under the above said circular the officers were advised to stop such activities mentioned above. Again there was a similar circular in the month of November, 1980. 'Besides the above, the learned Judge has taken notice of the dispute between the parties and the various rules and the bye-laws and stated as follows:'Therefore if the Management of the State Bank of India accedes to the request of the SBIOA and if the association also makes the necessary amendments in the byelaws with the approval of the Registrar under the Societies Registration Act, there could be no hindrance in the continued and effective functioning of the Trust established by the SBIOA. Having regard to the steps alleged to have been taken by the new office-bearers of the Association with the Management of State Bank of India, I feel there is absolutely no need for a suit of this nature to be entertained by this Court and the alleged cause of action cannot at all be said to be a real one.'. With respect, we have to say that the learned Judge was not adjudicating any dispute between the parties in the suit, but was examining, whether on the allegations in the plaint, a case had been made out for leave under Sec.92 of the Act. The law on the subject is not in dispute. The Supreme Court in Pragdasji v. Ishwarlalbhai, (1952)2M.LJ. 94: A.I.R. 1952 S.C. 143: 1952 S.C.J. 224, has pointed out that a suit under Sec.92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. The Supreme Court has said:'Such a suit can proceed only on the allegation that there is a breach of such trust or that directions from the court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the Section. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provision of Sec.92, C.P.C. As was observed by the Privy Council in Abdur Rahim v. Md.Barkat Ali, 55 Ind. App. 96(P.C), a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of Sec.92, C.P.C. In the case before us, the prayers made in the plaint are undoubtedly appropriate to the terms of Sec.92 and the suit proceeded on footing tat the defendant, who was alleged to be the trustee in respect of a public trust was guilty of breach of trust. The defendant denied the existence of the trust and denied further that he was guilty of misconduct of breach of trust. The denial could not certainly oust the jurisdiction of the court, but when the courts found concurrently on the evidence adduced by the parties, that the allegations of breach of trust were not made out, and as it was not the case of the plaintiffs, that any direction of the court was necessary for proper administration of the trust, the very foundation of a suit under Sec.92, C.P.C. became wanting and the plaintiffs had absolutely no cause of action for the suit they instituted. In these circumstances, the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was unconnected with the grounds upon which the case was actually disposed of, it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the plaintiffs.'Stating further, on the objection that even if the plaintiffs failed to prove the other allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties, the Supreme Court observed:'The reply to this is, that in a suit framed under Sec.92, C.P.C., the only reliefs which the plaintiff can claim and the court can grant are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it but when the case of the plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of Sec.92, C.P.C. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and the same cannot constitute the final decision in the suit.'.
(3.) THIS view has been reiterated, and no departure has been shown in any of the judgments of the Supreme Court in this behalf. Reiterating the same view in Harendra Nath v. Kali Ram Das, A.I.R. 1972 S.C. 246, it has been pointed out,'It is well settled by the decisions of this Court that a suit under Sec.92 is of a special nature which pre-supposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the court are necessary for the administration of the trust. In the suit, however, there must be a prayer for one or other of the reliefs that are specifically mentioned in the section. Only then the suit has to be filed in conformity with the provisions of Sec.92 of the Code of Civil Procedure.'. It appears that the attention of the learned Judge was drawn to a judgment of this Court in Devalur Pitchayya v. Divi Venkatakrishnamacharlu, 58 M.L.J.39. In that judgment also, it has been observed:'....the object of requiring sanction of permission before such suits are instituted under Sec.92 is to safeguard not only the rights of the public but also the rights of the institution and the trustees. The suit being a representative suit it is necessary to see that the persons who come forward are persons who have an interest in the temple and persons who can be safely entrusted with the conduct of the suit. Even though the whole public are technically par-ties still the plaintiffs who file the suit have the conduct of the suit and very large powers in the shaping and the conduct of the suit. As a matter of general experience the public leave to the plaintiffs to conduct all the proceedings and to take the various steps necessary for its successful prosecution. It is also for the benefit of the institution and of the trustees because it affords a safeguard against impecunious and improper persons coming as plaintiffs and involving the trust in litigation and expenses and it is also a safeguard that the persons are substantial person from whom if the suit fails, the costs can be recovered, and not merely men of straw....The authority giving the sanction must consider the various aspects before giving the sanction and one important consideration should be as regards the status and position of those who come forward to represent the community....It would be more desirable before giving the sanction that notice should be given to the institution or the trustees although it is not obligatory.'. Sub-sec(1) of Sec.92, Code of Civil Procedure, states:'.92.(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust, the Advocate General or two or more persons having an interest in the trust and having obtained the leave of the Court may institute a suit, whether contentious or not, in the principal civil court of original jurisdiction or in any other court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of thesubject-matter of the trust is situate, to obtain a decree-(a) removing any trustee(b) appointing a new trustee(c) vesting any property in a trustee (cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property (d) directing accounts and inquiries (e) declaring what proportion of the trust-property or of the interest therein shall be allotted to any particular object of the trust(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged (g) settling a scheme or (h) granting such further or other relief as the nature of the case may require."Sub-sec.(3) of Sec.92 gives power to the Court to alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cypres in one or more circumstances enumerated therein. We can see, however, the plaint allegation is that there is a charitable trust and that there are circumstances requiring settlement of the scheme for the proper administration of the trust. ;